Law enforcement as political question.

• Author: Price, Zachary S.
• Position: II. A Political Question Framework C. Real-World Enforcement: Judicial Unmanageability 2. Case-Specific Nonenforcement through Conclusion, with footnotes, p. 1606-1639

2. Case-Specific Nonenforcement

   These manageability problems apply with particular force to case-specific nonenforcement decisions, as opposed to announced general policies. (182) Although Heckler itself was ambiguous about the meaning of nonenforcement and the scope of decisions subject to its unreviewability presumption, some lower courts have understood the decision to apply only to case-specific--"single shot"--nonenforcement, as opposed to general agency policies. (183) Even some courts articulating this distinction have not applied it consistently. (184) Furthermore, although Heckler itself was a "single shot" decision in the sense that it involved denial of a specific petition for enforcement, the petition related to a general class of cases and the agency's decision announced a general approach of nonenforcement with respect to that class. (185) All that said, the basic insight that Heckler carries greatest force with respect to "single shot" nonenforcement is sound. (186)

   Confronted with nonenforcement in a particular case, courts cannot readily judge the agency's opportunity costs in pursuing that case rather than another. Indeed, even the agency may not be aware of the full set of potentially comparable cases that could be developed with adequate investigation. Courts likewise cannot assess the agency's likelihood of success as competently as the agency can; nor can they objectively judge the relative importance of the case within the agency's overall responsibilities.

   Some critics of Heckler have argued that arbitrariness review of the sort courts normally perform with respect to discretionary agency action should nevertheless apply equally to administrative nonenforcement. (187) On this view, at least insofar as the agency has memorialized its nonenforcement decision in some form (such as through denial of a petition for enforcement), a court conducting judicial review under the APA could set aside the agency's decision if the agency failed adequately to consider its decision's implications, made some evident mistake in its perception of the facts or law, or appeared to rely on arbitrary or impermissible reasons rather than reasons rooted in statutory or regulatory policy. (188) While this proposal in principle might help ensure consistency and fairness in agency enforcement practices, it carries at least two fatal drawbacks.

   The first is that requiring a decisionmaking process sufficient to support such review would itself squander enforcement resources while achieving little commensurate benefit in terms of statutory compliance. As Eric Biber has argued, agencies typically "must make many informal and quick judgments on a regular basis" about "whether to enforce a regulation or statute against a private party." (189) "In such situations, the possibility of judicial review would force the agency to make those decisions in a more formal and regularized manner, require a vast increase in resources for the decisionmaking process, and sharply circumscribe its ability to address other issues or problems." (190) In contrast, the principal asserted benefit of judicial review would be to mitigate risks of corruption, improper bias, or legal error. (191) But absent any particular reason to suspect such improper motivations, the benefits of reducing this risk may not be worth the costs in terms of reducing administrative efficiency and overall enforcement potential. (192)

   At any rate, these proposals carry the additional problem that requiring reasoned elaboration of agency enforcement practice could itself be counterproductive with respect to the ultimate goal of faithful execution--ensuring compliance with substantive law. An articulated enforcement practice is one that regulated parties can evade. For this reason, agencies often keep enforcement priorities secret or even avoid articulating them formally. (193) To be sure, there may also be benefits to announcing an agency's priorities; I address the benefits and costs of doing so below. (194) But interpreting the APA to require such reason-giving across the board would unduly collapse the distinction between law and its enforcement. Advocates of this view, indeed, recognize that it would require articulation of general enforcement policies independent of substantive legal requirements; insofar as the substantive law itself fails to prescribe any focus of agency effort, the agency would need to articulate such priorities itself and then justify each enforcement proceeding in their terms. (195) But to the extent such policies bind the agency (either practically or legally), they may effectively replace applicable substantive law as the governing law for regulated parties. (196)

   For all these reasons, interpreting the APA to categorically bar review of such decisions comports with more general, constitutionally informed ideas about the relative institutional competence of courts and executive agencies--whether or not the effective freedom given to executive officials by this judicial passivity accords with any appropriate conception of how executive officials should independently understand their responsibility. As Heckler recognizes, if Congress specifically provides for review or imposes a specific mandate of enforcement, then the problem of judicial unmanageability disappears. The court then need not consider the imponderable tradeoffs involved in not proceeding in the particular case; Congress has effectively established an enforcement priority for the agency, and the court need only review the agency's decision in the particular case. But without such congressional direction the court would have no objective basis for requiring enforcement in the particular case. (197)

3. General Policies

   Concerns about judicial unmanageability apply somewhat differently to publicly disclosed general nonenforcement policies. To begin with, insofar as it alerts regulated parties to agency enforcement plans, any such policy carries costs in terms of statutory compliance that more ad hoc or indefinite or undisclosed nonenforcement practices do not. Articulating a general policy thus moves one step beyond the inevitable enforcement discretion that results from resource constraints and practical challenges. To be sure, the agency might well have achieved the same pattern of results through case-by-case nonenforcement without articulation of a general policy. In principle, moreover, the agency might always change its policy without notice and resume enforcement. (198) Even so, insofar as the policy provides advance notice of the agency's intentions, it may carry costs to compliance with substantive law that nonenforcement in any particular case does not. By the same token, setting aside the policy through judicial review might vindicate the primacy of the substantive law simply by restoring that law's deterrent effect, even if the agency never ultimately pursues enforcement in any particular case. Furthermore, the very choice to articulate the policy provides an opportunity for deliberation and explanation, thus enabling more probing judicial scrutiny of agency reasoning without triggering concerns about diverting agency resources or forcing an articulation of undisclosed internal priorities. (199)

   Nevertheless, for the same reasons that review of single-shot nonenforcement decisions is generally unmanageable, any substantive review of a policy that merely sets resource-allocation priorities should be highly deferential. (200) If the policy is expressly predicated on legal interpretation, courts should assess the interpretation's validity, as indeed they have done in some decisions. (201) Legal error in single-shot decisions may be tolerable given the low costs to statutory compliance and high costs to formalizing such decisionmaking. (202) But these costs and benefits reverse when an agency has formalized a mistaken interpretation in an otherwise reviewable general policy; and no problem of judicial unmanageability preludes assessing an express legal interpretation (subject to any applicable degree of deference). (203) Relatedly, the policy may properly be subject to judicial review on procedural grounds if the agency should have used notice-and-comment procedures. Under the APA, as currently interpreted, such procedures are required for "legislative rules," that is, rules that create "legally binding obligations or prohibitions," (204) but not "general statements of policy," including enforcement policies. (205) While case law drawing this distinction is notoriously confused and imprecise, courts have generally sought to detect when agencies have made an effectively binding determination of law without using the more participatory and deliberative procedures the APA requires for such acts of lawmaking. (206)

   Yet if a policy surmounts these hurdles--if it is procedurally valid, does not involve explicit interpretation, and comports with any explicit statutory directives--courts should rarely look past a facially reasonable articulation of how the policy will advance the agency's statutory mission given resource limitations and practical constraints. Requiring some articulation of the policy's consistency with overall statutory or regulatory objectives may impose a useful discipline and help ensure public accountability for the agency's choices. (207) But more probing scrutiny could quickly involve the court in unmanageable judgments of relative importance, just as much as reviewing individual nonenforcement decisions would. After all, the policy only does overtly and formally what the agency must in any event do privately and informally. And while public articulation of the agency's priorities may carry costs to statutory compliance, it may also carry countervailing benefits. For one thing, it may facilitate managerial control of low-level enforcement decisions within the agency. (208) In addition, insofar as it alerts regulatory beneficiaries to agency...